DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim status
The examiner acknowledges the amendment made to the claims on 06/05/2026.
Claims 1-7 are pending in the application. Claims 5-6 are currently amended. Claim 7 is newly presented. Claims 1-4 are previously presented. Claims 5-6 are newly presented. Claims 1-7 are hereby examined on the merits.
Examiner Note
Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over Shirotani JP2015065949 (cited in the IDS submitted on 09/01/2023, English translation relied upon for reference, hereinafter referred to as Shirotani) in view of Bot US Patent Application Publication No. 2005/0069619 A1 (hereinafter referred to as Bot).
Regarding claims 1 and 4-7, Shirotani teaches a vegetable molded cheese-like food product (0001; 0034) which is an oil-in-water emulsion (0038) comprising, inter alia, oils/fats (e.g., a triglyceride composition, 0026) of 10 to 50 wt% or preferably 20-40 wt% (0027), starch (0014; 0022), and a vegetable protein (e.g., soy protein, 0014; 0017), wherein SFC of the oils and fats is 15% or more or preferably 25% (or 30%) or more at 20°C (0025), and wherein the vegetable molded cheese-like food has a hardness according to a rheometer measurement value at 5°C of the oil-in-water emulsion is 500-2000 g/19.6mm2 (5 mm diameter circular plunger, table speed 50mm/min) or more (0033). Note that Shirotani teaches that the soy protein can contain no or trace amount of fat (0019), thus the oils and fats of the cheese-like food product can be totally from the triglyceride composition that has an SFC of 15% (or 25%, or 30%) or more at 20°C.
The amounts of oils and fats, the SFC and the hardness value as disclosed by Shirotani encompass the ranges as recited in claims 1 and 4-5. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Shirotani is silent regarding that the saturated fatty acid content of the oils and fats is less than 40% as recited in claim 1, or that the oil or fat is mixed oils and fats of at least two selected from the group consisting of rapeseed oil, coconut oil, palm oil, etc.
Bot discloses a cheese-like food product (e.g., a spreadable food product that resembles cheese, [0001; 0003]) which is an oil-in-water emulsion ([0011; 0075]) comprising starch ([0011; 0033]); protein such as soy protein ([0001; 0037]; oils/ fats selected from the group consisting of palm oil, coconut oil, palm kernel oil, soybean oil, rapeseed oil, sunflower oil and combination thereof ([0011; 0045-0046]). Bot teaches that the oils/ fats contain less than 45% or preferably less than about 30% saturated fatty acid ([0047]), and that the SFC content of the oils/fats is 1-50% or preferably 7.5-35% or 10-35% at 20°C ([0043]). Additionally, Bot teaches that the cheese-like food contains 5-40% or preferably 15-35% or 20-35% oils/fats ([0040]).
Both Shirotani and Bot are directed to cheese-like foods that comprise oils/fats, soy protein, and starch, and the amount of oils/fats for the cheese-like food in both are matched (e.g., Shirotani teaches 20-40% oils/fats and Bot teaches 20-35% oils/fats). Further, where Shirotani requires that the SFC of the oils/fats in the cheese-like food needs to be 15% or more or preferably 25% (or 30%) or more at 20°C, Bot teaches that oils/fats selected from the group consisting of palm oil, coconut oil, palm kernel oil, soybean oil, rapeseed oil and combination thereof have a SFC content of 1-50% (or preferably 7.5-35% or 10-35%) at 20°C. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Shirotani by substituting the oils/fats as disclosed by Bot for the oils/fat of Shirotani with reasonable expectation of success, for the reason that Bot has established that oils/fats such as palm oil, coconut oil, palm kernel oil, soybean oil, rapeseed oil, sunflower oil and combination thereof is the suitable fat source for a cheese-like food that comprises soy protein and starch, and the SFC content of such oils/fats meets the amount of 15%, 25%, or 30% or more as required by Shirotani.
The amount of saturated fatty acid in the oils/fats and the SFC content as disclosed by Bot meets the range as recited in claims 1 and 5. Further, given that Shirotani teaches that the cheese-like food contains 20-40 wt% oils/fats, and Shirotani as modified by Bot teaches that the oils/fats contains less than 30% saturated fatty acid, cited arts in combination meet the amount of saturated fatty acid by weight of the emulsion as recited in claims 1 and 5 (for example, if the cheese-like food contains 20% oils/fats, and the oils/fats contains 30% saturated fatty acid, then the amount of saturated fatty acid by weight of the cheese-like food or the emulsion is 20% x 30% =6%). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Regarding claim 2, Shirotani teaches cutting the molded cheese-like food product into slice or shred shape (0014).
Regarding claim 3, Shirotani as recited above teaches a cheese-like food product comprising vegetable oil (e.g., palm oil), starch of vegetable nature (0022), and a vegetable protein (e.g., soy protein). Further Shirotani as modified by Bot will introduce vegetable oil.
Further, Shirotani teaches that the cheese-like food product comprises water (0014). Although Shirotani does not specify whether the water is “vegetable”, a water is a water and one would not be able to tell if a water is derived from vegetable matter or non-vegetable matter.
Further, Shirotani teaches that the cheese-like food product comprises other materials such as an emulsifier, a pH adjuster, a flavoring, etc. (0031-0032). However, Shirotani teaches that those other materials are optional items for the cheese-like food product.
Therefore, it is submitted that Shirotani as modified by Bot reads on claim 3 limitation that the cheese-like food product comprises only vegetable raw materials.
Response to Arguments
Applicant's arguments filed 06/05/2026 have been fully considered but they are not persuasive.
Applicant argues on page 6 of the Remarks that it would not have been obvious to a skilled artisan to modify Shirotani with the oil of Bot, since where the former is directed to a sliced or shredded type of cheese-like food, the latter is directed to a spreadable acidified product.
The argument is considered but found unpersuasive. Both Shirotani and Bot are directed to cheese-like foods that comprise oils/fats, soy protein, and starch, and the amount of oils/fats for the cheese-like food in both are matched (e.g., Shirotani teaches 20-40% oils/fats and Bot teaches 20-35% oils/fats). Further, where Shirotani requires that the SFC of the oils/fats in the cheese-like food needs to be 15% or more or preferably 25% (or 30%) or more at 20°C, Bot teaches that oils/fats selected from the group consisting of palm oil, coconut oil, palm kernel oil, soybean oil, rapeseed oil and combination thereof have a SFC content of 1-50% (or preferably 7.5-35% or 10-35%) at 20°C. As such the common features as shared by the two outweighs their distinction but applicant appears to have stressed too much on t the distinction but inadvertently overlooked what they have in common. Note that slice-type or shredded type of cheese-like food product and a spreadable cheese-like food differ mostly in hardness but the hardness can always be adjusted by varying water content and by varying the SFC in oil (see para. 0042 of Bot).
Applicant argues on page 6 of the Remarks that even Shirotani as modified by Bot teaches a ratio of saturated fat by weight of the emulsion at less than 12%, Comparative Examples 3-4 of the instant specification have shown that the hardness is less than 400 g/19.6 mm2.
The argument is considered but found unpersuasive. It is found that Comparative Example 3-4 do not have the SFC content of Shirotani which is at least 15%, rendering applicant’s comparison insubstantial. It is known that the hardness is related to the content of the SFC (see para. 0042 of Bot).
Applicant asserts on the para. that bridges pages 6-7, and also on the para. below the reproduced Table 3 of the Remarks that the combination of SFC of the oils, saturated fat content in the emulsion, and a ratio of saturated fat to all fat achieves the vegetable molded cheese- like food product having the desired hardness of 400 g/19.6 mm2 or more.
The assertion is considered. However, Shirotani as modified by Bot teaches all the aforementioned limitations including the hardness. Further, at least Examples 7-8 of the Table 2 shows that even an SFC or a ratio of saturated fat in the oil is not in the claimed ranges, the hardness of 400 g/19.6 mm2 can still be achieved.
Additionally, it is not immediately clear if applicant is asserting a criticality for the feature of 5.7-38% SFC combined with 2.5-10% saturated fat by weight of the emulsion and less than 40% statured fat in the oil. If that is the case, the examiner submits that applicant needs to show by evidence that the combined ranges has produced a new result when compared with a control that is outside the ranges. To this end, it is determined that the showing in Table 2-3 is not sufficient in rebutting the prima facie case of obviousness. See examiner’s comments in para. 22-23 of the office action issued 03/17/2026.
Applicant argues on page 7 of the Remarks that where Shirotani teaches that higher SFC is preferable in view of melting in the mouth, Comparative Example 2 has shown that even at a SFC content of 51, the evaluation of “Melting in mouth” decreases.
The argument is considered. However, absent a comparison with another sample, it is unclear what applicant means that the evaluation of melting “decreases”. The argument would have made more sense if applicant shows that another sample that has lower SFC content than Example 2 but otherwise has the same ingredients has higher melting score than Example 2. On the other hand, [0025] of Shirotani discloses “from the standpoint of flavor and meltability in the mouth, the soybean protein-containing cheese-like food of the present invention preferably has an SFC (solid fat content) of 45% or more at 10°C and 15% or more at 20°C”. Such a disclosure appears to mean that a threshold SFC is required for meltability, rather than that the higher the SFC is, the better meltability score it will achieve.
Applicant argues on the para. that bridges pages 7 and 8 of the Remarks that Bot teaches the firmness of the product can be adjusted by adjusting SFC, however, contrary to the teaching by Bot, comparative Example 4 has shown that even if the SFC of the oil are within the claimed range, the hardness decreases. Applicant goes on to argue that the Comparative Example 3 has shown that even if the saturated fatty acid content in the oil-in-water emulsion, and a ratio of saturated fatty acids to all constituent fatty acids in the oils and fats are within the claimed ranges, the hardness decreases depending on the SFC of the oils and fats.
The argument is considered. However, it is found that neither of Comparative Example 3 nor Comparative Example 4 has shown that varying the SFC will not change the firmness or that the firmness is independent of the SFC. Further, it is unclear what applicant means by “decreases”. What control is being compared with the comparative example such that the hardness decreases?
For the reason set forth above, the rejection over Shirotani as modified by Bot is maintained.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/CHANGQING LI/Primary Examiner, Art Unit 1791
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